How to Keep Your Record Clean in Georgia (Pt. 1): First Offender and Conditional Discharge

Being charged with a felony in Georgia and pleading guilty to it can easily lead to you becoming a convicted felon. A felony conviction can stay with you long after you have been convicted — potentially for life — and can continue to negatively affect many areas of your life including employment, housing, education, gun rights, voting rights, and much more. Before you plead guilty to a felony (or a serious misdemeanor), you need to explore ways with your lawyer to have the guilty plea not enter in as a conviction on your record.

The two primary ways to do this in Georgia is either through the First Offender Act (O.C.G.A. 42-8-60) and Conditional Discharge (O.C.G.A. 16-13-2). These two statutes operate differently in Georgia, but lead to the same important result: No felony conviction on your record. However, the downside is that if you violate probation while you are on it (such as by committing a new crime) the court can bring you back in, adjudicate you as guilty, and re-sentence you. If you are someone who is committed to complying with probation and avoiding any future arrests, First Offender and Conditional Discharge could be a great option for you. Now, lets discuss the differences between Conditional Discharge and First Offender.

Conditional Discharge

This statute is geared specifically toward first-time drug offenses, or property offenses that were caused by an underlying drug problem — it doesn’t apply to other kinds of felonies. You can qualify for Conditional Discharge if you have never been convicted of any drug offense in Georgia or any other state or federal court. If the court chooses to use conditional discharge in your case, they may put you on probation for a period not to exceed three years and mandate any treatment they see as necessary. If you complete that probation without violating any terms and conditions, no conviction will enter in on your record. You are only allowed to plead guilty under this statute once.

First Offender

First Offender is like Conditional Discharge, but can be used for virtually any felony except for with more serious felonies such as murder, rape, armed robbery, and sex crimes etc. It is important to remember that the granting of First Offender is within the trial judge’s discretion, and the judge can choose not to give it for any reason. However, if a Defendant in Georgia has never been convicted of a felony in any state, and has committed a less serious felony such as drug possession or a property crime, most Defendants can expect to be treated as a First Offender. Another thing to be aware of is even if you have never committed a felony before but have an extensive misdemeanor criminal history, this may be a reason that a judge chooses not to give you First Offender. Your attorney should be prepared with an argument for the Judge as to why you should get First Offender or Conditional Discharge.

Which One Is Best?

If you are pleading guilty to a first-time drug offense, it is probably better that you use the Conditional Discharge statute rather than First Offender. This is for two reasons. First, the Conditional Discharge statute does not say anything about the judge sentencing you to any jail or prison time, and, in fact, most people get straight probation when being sentenced to Conditional Discharge. The First Offender statute allows the judge to sentence you to probation, jail/prison, or a split sentence. Second, and most importantly, you can conceivably use the First Offender statute after having used the Conditional Discharge already. Once you have used First Offender, it is probably less likely you would get Conditional Discharge. But, again, all of this is up to each individual judge.

In conclusion, remember that while First Offender and Conditional Discharge are great options to keep your record clean in Georgia, there are serious downsides if you violate the terms of your probation or commit a new crime while on probation. In coming posts we will be discussing pre-trial diversion, accountability courts, and record sealing as other ways to keep your record clean in Georgia.